This, according to the opinion, is how Nguyen came to be
convicted of burglary:

[Nguyen] entered an electronics store
and walked to the computer department. One of the store's loss prevention
officers, Angel Gonzalez, saw [him] open a box, place something under it, and
leave the store. When Gonzalez checked the aisle where [Nguyen] had been, he
found a printer that had been removed from its box and placed on a bottom shelf
behind other items, but he was unable to locate a corresponding empty printer
box. Gonzalez took the printer, which retailed for about $100, to the front of
the store.

Soon after, [Nguyen] reentered the
store. Gonzalez watched on a security camera as [Nguyen] returned to the
computer department. He saw [him] pick up an opened box and bring out a roll of
tape from inside his jacket. At this Gonzalez left his station to confront [Nguyen].

When he arrived, Gonzalez found [Nguyen]
in the process of sealing a printer box. Looking inside, Gonzalez found two
laptop computers, which retailed for $450 each. Because of the positioning of
the computers in the box, it would have been difficult to tell from the outside
that they had been substituted for the cheaper printer. [Nguyen] was detained
and arrested.

People v. Nguyen,
supra.

At Nguyen’s trial, after both parties had presented their
evidence and rested, the judge

instructed the jury on burglary and
attempted grand theft by larceny. . . . As given by the court, the elements of
theft by larceny were (1) defendant took possession of property owned by
someone else, (2) defendant took that property without the owner's consent, (3)
when defendant took the property he intended to deprive the owner of it
permanently, and (4) defendant moved the property and kept it for a period of
time.

People v. Nguyen,
supra.

While they were deliberating, the jury

sent a note asking, `Are theft and
defraud the same? Meaning, because his intent to pay for a lesser item, is that
the definition of theft?’ The court responded, `. . . . The owner's consent
cannot be obtained by fraud or deceit.’ The court explained to counsel, `The
Court extrapolated that language from the theft-by-trick instruction. I
declined to give the entire theft-by-trick instruction, but I thought that
portion was appropriate in the context of this case.’

People v. Nguyen,
supra.

On appeal, Nguyen argued that the evidence presented at
trial

did not support a burglary conviction
based on intent to commit larceny, the theory of theft on which the jury was
instructed. He argues the
evidence supports a conclusion he intended to commit, if anything, theft by
false pretenses by disguising the laptop computers in the printer box, paying
the stated price for the printer at the sales counter, and, contrary to the
theory of larceny, `tak[ing] the laptops from the store with consent.’

People v. Nguyen,
supra (emphasis in the original).

The Court of Appeals began its analysis of his argument by
noting that the

statutory crime of theft is comprised
of several different common law crimes, including embezzlement, theft by
larceny, theft by trick or device, and theft by false pretenses. . . . In 1927,
these common law crimes were consolidated in Penal Code section 484 into
a single statutory crime. . . .

`The purpose of the consolidation was
to remove the technicalities that existed in the pleading and proof of these
crimes at common law. Indictments and informations charging the crime of
“theft” can now simply allege an “unlawful taking.” . . . Juries need no longer
be concerned with the technical differences between the several types of theft,
and can return a general verdict of guilty if they find that an “unlawful
taking” has been proved.’ People v.
Ashley, 42 Cal.2d 246 (California Supreme Court 1954).

People v. Nguyen,
supra.

This court noted, though, that

[t]he simplification envisioned by the
Legislature has not been entirely realized. Rather than following the lead of
the Legislature and collapsing the disparate theories of theft into a single
crime, the courts have maintained their separate existence.

People v. Nguyen,
supra.

It also explained that

[r]eported decisions suggest juries
continue to be instructed on the elements of the individual theories, rather
than being asked to render a general verdict of theft. Further complicating
matters, the trial judge must instruct on the proper theory of theft, since `the
[theft] offense shown by the evidence must be one on which the jury was
instructed and thus could have reached its verdict.’ People v. Curtin 22 Cal. App. 4th 528
(California Court of Appeals 1994). While technicalities of pleading may have
been eliminated by the consolidation, the technicalities of proof remain.

People v. Nguyen,
supra.

The court then noted that the

separate theories of theft are largely
`aimed at different criminal acquisitive techniques.’ People v. Ashley,
supra.Theft by larceny, the theory
on which the trial court instructed the jury, `is committed by every person who
(1) takes possession (2) of personal property (3) owned or possessed by
another, (4) by means of trespass and (5) with intent to steal the property,
and (6) carries the property away. . . .

The act of taking personal property
from the possession of another is always a trespass unless the owner consents
to the taking freely and unconditionally or the taker has a legal right to take
the property.’ (People v. Davis, 19 Cal.4th 301 (California Court of
Appeals 1998).

Because possession of the stolen item
must be gained without the owner's consent, larceny is classically a crime of
stealth. Given the `carrying away’ requirement, known as `asportation,’ it
necessarily applies to the theft of tangible items.

Embezzlement is
characterized by the wrongful taking of property voluntarily entrusted. It
therefore features acquisition by breach of trust. People v. Sisuphan, 181
Cal.App.4th 800 (California Court of Appeals 2010).

People v. Nguyen,
supra.(For more on asportation,
check out this Wikipedia entry.)

Next, the Court of Appeals pointed out that the

two remaining theories, theft by trick
or device and theft by false pretenses, are crimes of deception, involving the
taking of property of another after consent to its possession has been obtained
by fraud or deceit. The two are nearly identical in substance, except that with
theft by trick, the property owner transfers, and intends to transfer, only
possession, whereas with theft by false pretenses the owner transfers both
possession and ownership. . . .

[A] conviction for theft by false pretenses
is generally held to have `a special corroboration requirement’ not applicable
to theft by trick or device. People v. Curtin, 22 Cal.App.4th 528
(California Court of Appeals 1994). Although theft by trick or device and false
pretenses are often applied to the taking of money or intangibles, which are
less susceptible of asportation,the elements of the two offenses do not limit their application to
intangibles. . . .

People v. Nguyen,
supra.

The court addressed one final prefatory issue before it
turned to Nugyen’s case:

The concept of valid consent was
further narrowed in . . . Davis, supra. In that decision, the defendant
was convicted of larceny after taking a shirt from its hanger in a department
store, carrying it to the sales counter, claiming to have purchased it earlier,
and requesting a refund. . . .

In affirming the conviction, the court held that
[Davis] took possession of the shirt by removing it from the hanger while still
in the store and satisfied the asportation requirement by carrying the shirt to
the sales counter. . . .

The court found trespass merely in [his]
taking the shirt from a hanger with the intent to steal it. Although
recognizing department stores are ordinarily presumed to consent to customers'
carrying items for sale within the store, Davis found no consent to
such transport if committed with a larcenous intent. . . .

People v. Nguyen,
supra.

The Court of Appeals then explained that the above
discussion revealed “the two flaws” in Nguyen’s argument.People
v. Nguyen, supra.

First, although he claims to have intended
`to take the laptops from the store with consent’
by paying the lower price for the printer, the store would not be deemed to
have `consented’ to [his] taking the laptops, at least for purposes of the law
of larceny, merely because store employees permitted him to leave the store
with them.

Rather, under the narrow view of retail
consent found in Davis, a customer has implied consent to take
items from the shelf only if he or she does so with honest intent. . . . Accordingly, [Nguyen] satisfied the elements
of larceny by picking up the laptop computers and placing them in the empty
printer box with the intent of taking them from the store without paying the
full laptop price.

He did not merely attempt or to
commit larceny, which would have been sufficient to satisfy the elements of the
charged offenses; under Davis, he could have been convicted of
the completed crime.

People v. Nguyen,
supra (emphasis in the original).

It then addressed the second flaw in his argument, noting
that this case was not

an `either/or’ situation. [Nguyen]
could have intended to commit both offenses, since the theories are not
mutually exclusive. Particularly given the narrow definition of `consent’
courts have adopted in connection with larcenous conduct, the use of deception,
rather than stealth, to steal tangible objects . . . can qualify both as theft
by larceny and false pretenses.

The narrow view of retail store consent adopted
by Davis creates a similar overlap in
that context. [Nguyen] cites no decisions holding that conduct constituting
theft must qualify under only a single legal theory. On the contrary, several
decisions have found the same conduct to constitute theft under more than one
common law theory. . . .

In support of his argument, [Nguyen]
relies primarily on People v. Lorenzo, 64 Cal. App. 3d Supp. 43
(California Court of Appeals 1976), in which the defendant was found to have
committed theft by false pretenses when he switched price tags on retail goods.
. . .

While Lorenzo supports the argument that [Nguyen’s] intended
conduct satisfied the elements of theft by false pretenses, the decision does
not hold that the same conduct could not also constitute theft by larceny,
since larceny was neither raised nor addressed in Lorenzo.

People v. Nguyen,
supra.

The court therefore held that because Nguyen’s conduct
satisfied the

elements of theft by larceny as defined
by the Supreme Court in Davis, the jury's implicit finding
that defendant entered the store with the intent to commit theft, and therefore
his conviction for burglary, was supported by substantial evidence. Whether his
conduct also constituted an attempt to commit theft by false pretenses is
immaterial to that issue.

People v. Nguyen,
supra.

For this and other reasons, it affirmed his conviction and
sentence.People v. Nguyen, supra.

The prosecution’s first witness at trial was William
Kouruklis, who “had been employed there for almost 19 years.” People v. Martin, supra. He had worked “in
many different capacities at the treasurer's office”, and finally became “a
deputy county treasurer and the director of operations.”People
v. Martin, supra.He explained that
the treasurer’s office’s task was to “collect the $9.5 billion in annual property taxes
assessed on over 1.7 million individual properties in Cook County, and then
properly distribute those collected funds to over 1800 different taxing
districts.” People v. Martin, supra.To facilitate these processes, “each piece of
property is assigned a property index number, or `PIN.’” People v. Martin, supra.

The opinion explains that sometimes, the office would
receive a duplicate payment or overpayment (D & O) of the property taxes
owed" for a property, which meant the taxpayer “would be entitled to
a refund upon the filing and acceptance of a refund request application.” People v. Martin, supra.The fact that a refund might be due with
respect to particular property was “available to the public; the information was
“provided in property tax bills, and was also available by querying the treasurer's
phone system or website about the refund status of a particular PIN.” People v. Martin, supra.

Also, employees
“had access to a computer program” they could use to see if “a PIN was due a
refund for a D & O payment.” People
v. Martin, supra. They typically used it to assist taxpayers making
inquires as to the refund status of individual properties.” People v. Martin, supra.Employees in the D & O refund department
would use this information to process refund applications submitted by
taxpayers or by “third-parties working on commission to obtain refunds for
taxpayers.” People v. Martin, supra.
“In all such cases, the refund information . . . in the treasurer's computer
files was only accessible by querying one PIN at a time.” People v. Martin, supra.

Certain employees were authorized to access the
treasurer's computer files and “obtain a list -- typically in the form of a Microsoft
Excel spreadsheet file -- of all the properties in Cook County that were owed
property tax refunds.” People v. Martin,
supra. Kouruklis would obtain such a list “a few times” a year and “obtain
separate lists of properties owed refunds for each of the prior five tax years.”
People v. Martin, supra. He would
obtain the list “to analyze the effectiveness of the
treasurer's collection efforts, to see how many D & O payments there were,
and to see if a D & O payment in one year might be offset by a delinquency
in another year.” People v. Martin,
supra.

In a five-year period, “there might be as many as 120,000 records of
D & O payments.” People v. Martin,
supra.He only retrieved information
for “the prior five tax years, because
there was a statute of limitations precluding a taxpayer from receiving a
refund for any tax year before that time.” People
v. Martin, supra.

The D & O computer data “was secured by requiring a person to enter
a user name and password that would be recognized by the treasurer's computer
system as authorizing that person to access” it. People v. Martin, supra.The
authority to obtain the information was limited to Kouruklis, the Treasurer,
Maria Pappas, the treasurer's chief deputies, “the chief information officer,
and one or two employees of the information technology (IT) department.” People v. Martin, supra.If other
employees needed such information “for any reason, they would have to ask
either Kouruklis or one of the IT employees, with all such requests typically
approved by Kouruklis”. People v. Martin, supra.

Kouruklis worked in the treasurer's main office, which was
in two floors of the County Building in downtown Chicago. People v. Martin, supra.It was
equipped with “between 44 and 48 ceiling-mounted video cameras” that were
installed because of “the large amounts of money collected by the department
and the need to accurately account for those funds.” People v. Martin, supra. Kouruklis described the cameras as “`casino
grade,’” because “they had very powerful zoom lenses” and were “controlled by
two sets of monitors and joysticks installed in” Kouruklis’ office and that of
the County Treasurer. People v. Martin,
supra. When “zoomed in, the cameras were capable of allowing a viewer to
count money or to read `regular font size documents.’” People v. Martin, supra.

The treasurer's office made a video recording of the live
feed from these cameras, but the video quality “was not as high as the live
feed.” People v. Martin, supra.In addition to “their general use,” Kouruklis used
the cameras “and the joystick in his office to monitor the office on `high
collection days’ when there were a lot of cash transactions.” People v. Martin, supra.He also
used the cameras to find employees if they could not be reached by telephone at
their desk.People v. Martin, supra.

That brings us to tothe prosecution.On November 16, 2005, Kouruklis was using the

joystick and monitor in his office to
locate Vicky Pappas, the treasurer's chief legal counsel. As he panned one of
the cameras across the legal department, [he] observed [Martin] sitting at his
desk working on his computer. Kouruklis had known [him] for 12 to 14 years, as [Martin]
started at the treasurer's office a few years after Kouruklis. [He] had worked
for Kouruklis as part of the operations team[, which meant [Martin] acted as an
informal `IT facilitator’ troubleshooting employees computer problems because [he]
`had enough technical savvies to go ahead and fix a problem that somebody may
have had with their computer.’

By
November of 2005, . . . [he] was employed in the legal department and was
responsible for working on `sales in error,’ which involved errors with respect
to delinquent property tax payments. This did not have anything to do with D
& O payments or refunds. Nevertheless, when Kouruklis scanned [Martin’s]
desk with the video camera, he observed a Microsoft Excel spreadsheet displayed
on [his] computer screen.

The spreadsheet looked familiar, and when Kouruklis
zoomed in he realized [Martin] was working with a spreadsheet containing D
& O refund data in the form Kouruklis semi-annually request[ed] from the IT
department. To confirm this, Kouruklis checked the PIN numbers in the
spreadsheet displayed on [Martin’s] screen. In each case, he found that refunds
-- some in amounts `of hundreds of thousands of dollars’ -- were due on those
properties.

People v. Martin,
supra.

Kouruklis later testified that he found Martin’s actions to
be a

`red flag’ because: (1) nobody in the
office needed that data at the time; (2) nobody else knew how to access that
data; and (3) at the time, [Martin] was not working in either the refund or IT
departments, or for Kouruklis. Indeed, at that time, [he] did not have
authority to access the comprehensive D & O refund data and create an Excel
spreadsheet of that data. Kouruklis did not know how [he] had done so.

People v. Martin,
supra.

Kouruklis continued to watch Martin on the camera and saw
him do “`a lot’” of “`cutting and pasting’”, in which he highlighted
information about PINs that were due refunds, copied it and pasted it “into a
blank Microsoft Word document.” People v.
Martin, supra.It included information about the properties due refunds, taxpayer information, dates of prior payments and "images of checked" used to pay property taxes for a particular PIN obtained from other programs and databases." People v. Martin, supra.

Kouruklis said Martin was “`creating a Microsoft Word
document of all the history of a” PIN “`for every property.’” People v. Martin, supra.He said there were “`100,000 records in that
Excel spreadsheet’” but Martin “`was taking . . . certain ones he wanted.’” People v. Martin, supra. Kouruklis noted
that when someone walked by behind Martin, his screen would “`be minimized and
the sale in error screen would pop up, which was his regular duties at that time’”
People v. Martin, supra.This went on for two hours. People v. Martin, supra.

As Kouruklis watched, this went on for a while, until he
finished the Word document and emailed it and the spreadsheet to “his personal
email account.” People v. Martin, supra.He then deleted the "history of the documents he worked with, his Internet browser history,

certain `sent’ emails, the print queue, and
the contents of the `recycling bin’ on his computer.” People v. Martin, supra.Martin
was then asked to leave his office, which was guarded by a Sheriff’s deputy
while the treasurer's office investigated what Martin had been doing. People v. Martin, supra.It
turned up the Word file and the spreadsheet. People v. Martin, supra.At
Martin’s trial, a detective testified that “the Microsoft Word document
contained information regarding seven PINs, [each of which was] listed as a
property owed a refund on the larger Microsoft Excel spreadsheet.” People v. Martin, supra.

On appeal, Martin argued, among other things, that the
evidence presented at trial, only a small part of which is summarized here, was
not sufficient to prove his guilt beyond a reasonable doubt. People v. Martin, supra.The court noted that when someone makes a sufficiency of the evidence argument, its task is to “review
the evidence in the light most favorable to the State to determine whether any
rational trier of fact could have found the elements of the crime proven beyond
a reasonable doubt.” People v. Martin,
supra.It also noted that the
statute Martin was convicted of violating makes it a crime for a public
employee, acting “`in his official capacity,’” to “`[k]nowingly perform[] an
act which he knows he is forbidden by law to perform’”. People v. Martin, supra (quoting 720 Illinois Compiled Statutes §
5/33–3).

The “forbidden by law” part of the offense refers to conduct
that is otherwise illegal, i.e., is a crime.People v. Martin, supra. The
charges against Martin alleged he “committed the offense of computer tampering”
in violation of 720 Illinois Compiled Statutes § 5/16D-3(a).The statute makes it a crime “knowingly” to
access “a computer or any part thereof” without being authorized to do so or in
excess of “the authority granted to him” and thereby obtain “data or services.”On appeal, Martin did not challenge the
sufficiency of the evidence to prove that he was a public employee, that the

relevant acts . . . were taken
in his official capacity, that he performed those acts knowingly, that he knew
computer tampering was a crime, or knew that accessing comprehensive D & O
refund data without authority would constitute the offense of computer
tampering. Nor does [he] seriously contest the evidence that he did not . . . have
authority to access comprehensive D & O data. . . . Instead, [Martin]
contends the State failed to prove he actually knew he did not
have authority to access comprehensive D & O data, such that the State also
failed to prove [he] knew he was committing the offense of computer tampering
when he accessed that data.

People v. Martin,
supra (emphasis in the original).

More precisely, Martin argued that while there “was a great
deal of evidence” as to his lack of authority, there was

`no testimony . . . as to whether . . .
anyone ever informed [him] he had no access or authority to access the duplicate
and overpayment database.’ He . . . argues there was no evidence [he] was ever
shown the help desk requests removing his access to various programs and
databases, nor was there any evidence that he was provided with an employee's
manual, policy statement, or written memo informing him of his lack of
authority to access comprehensive D & O data. Finally, he complains there
was no `pop-up warning’ on his computer advising him of his lack of authority
to access that data.

People v. Martin,
supra.

The court found these arguments “unpersuasive”, because
knowledge “`may be, and ordinarily is, proven circumstantially.’” People v. Martin, supra (quoting People
v. Ortiz, 196 Ill.2d 236, 260 (Illinois Supreme Court 2001)). In other
words, knowledge can be inferred from the facts proven in court. People v. Martin, supra.

made efforts to conceal his use of the
comprehensive D & O data by `minimizing”’ the Word document and the Excel
spreadsheet on his computer screen when people would pass behind him, and by
deleting files and emails containing this data. [He] was also observed deleting
the history of the documents he had worked with that day, as well as his
internet browser history, the print queue, and the contents of the `recycling
bin’ on his computer.

This evidence supports an inference
that [Martin] knew he did not have authority to access comprehensive D & O
data on that date.

People v. Martin,
supra.

Finally, the prosecution also introduced evidence showing
that prior to November, 2005, Martin had submitted a

help desk request seeking permission to
access the D & O refund data, but only with respect to querying a single
PIN at a time. As the State notes, the fact [he] previously sought limited
access to information regarding refunds one PIN at a time, supports an
inference that [Martin] knew he did not have the authority to access
comprehensive D & O data about over 100,000 separate PINs, when he later
did so. . . .

People v. Martin,
supra.

For these and other reasons, the appellate court affirmed
Martin’s conviction and sentence. People
v. Martin, supra.

Monday, June 24, 2013

After a jury convicted her of “second-degree federal murder”
and child abuse, and the judge sentenced her to twenty-five years in prison,
Rebecca Christie appealed.U.S. v. Christie, __ F.3d __, 2013 WL 2477252
(U.S. Court of Appeals for the 10th Circuit 2013). Christie was
prosecuted in federal court because the death at issue, and the abuse leading
up to it, all occurred on an Air Force base, which meant “federal authorities
bore the responsibility to investigate and the power to prosecute.”U.S. v.
Christie, supra.

As to why Christie was charged with these crimes, the Court
of Appeals began its opinion with this overview:

For Rebecca Christie, life must have
seemed more virtual than real. She usually awoke around noon, settled in before
her computer, and logged on to World of Warcraft for gaming sessions lasting
well past midnight. There she assumed a new identity in a fantastical world
filled with dragons and demons where players staged heroic adventures with and
against other players.

All the while back in the real world
Ms. Christie ignored the needs of her three-year-old daughter. The neglect
didn't prove fatal so long as Ms. Christie's husband was around to provide some
care. But nine days after her husband left for an out-of-state deployment, the
child was dead from dehydration.

U.S. v. Christie,
supra.

The opinion then describes the facts in the case in more
detail, noting that Christie’s

child began life a healthy baby girl.
But by twenty-one months, something appeared badly wrong. She plummeted to the
bottom fifth percentile in weight for her age and began suffering
from chronic diarrhea. A pediatrician prescribed PediaSure, a nutritional
drink that helps children gain weight. That seemed to do the trick: the
diarrhea soon stopped and BW (the district court and parties refer to the child
by her initials) began gaining weight. By all appearances, she had turned a
corner.

Eventually, Wulf faced a deployment on
the other side of the country. With the little care he provided BW now gone
with him . . . the child was in trouble. . . . [S]he succumbed to dehydration
in nine days. An autopsy revealed. . . . BW simply died from being ignored.

[At trial, medical] experts testified
that BW's desperate condition in the days before her death would have been
blindingly clear. BW would have sought out water as a survival instinct. When
that failed, she would have become lethargic and, on the day before her death,
too weak to move. Her diapers wouldn't have needed changing. She would have had
sticky saliva and then no saliva at all. She would have developed cracked lips,
sunken eyes, and a sunken abdomen.

First responders confirmed this is
exactly what they saw when they found the child. They testified that BW's lips
were cracked and blue, her eyes glassy, and her eyelids so dry they couldn't
close. They said bones protruded from her body and her gums had turned black.

U.S. v. Christie,
supra.(You can read a little more
about the case in this news story.)

One of the issues Christie raised on appeal – and the only
one this post examines – involved the 4th Amendment and her
computer:

Much of the evidence presented at trial
against Christie came from the computer she so prized. From their forensic analysis,
FBI investigators learned Christie's online activities usually kept her busy
from noon to 3 a.m. with little pause. They learned she was in a chat room only
an hour before finding BW near death, and was back online soon afterwards.

They
learned from Christie's messages to other gamers that she was annoyed by her responsibilities
as a mother and `want[ed] out of this house fast.’ When Wulf was slated for
deployment, she announced to online friends that she would soon be free to
`effing party.’

U.S. v. Christie,
supra.

On appeal, Christie claimed “this evidence and more from her
computer was uncovered in violation of her 4th Amendment rights and the
district court should have suppressed it.”U.S. v.
Christie, supra.The court noted
that she did not challenge the government’s seizure of the computer, because
the agents “took possession of the computer . . . with Wulf’s consent.”U.S. v.
Christie, supra.“Everyone accepts he
was at least a co-owner of the computer -- it was a gift from his father -- and
[that] he had at least apparent authority to relinquish its control.”U.S.
v. Christie, supra.

(As Wikipedia explains, consent substitutes for the warrant
required for officers to search and/or seize property.And as I noted in an earlier post, to have
authority to consent to the seizure of property, the person must be at least a
co-owner of the property or police must reasonably believe he/she is a
co-owner.)

Getting back to Christie’s 4th Amendment
argument, she “attack[ed] the propriety of the two searches the government
undertook once it had” the computer.U.S. v. Christie, supra.Christie claimed the warrants “were issued in
violation of the 4th Amendment.”U.S. v. Christie, supra.

The first came in October 2006, five months after agents
seized the computer. U.S. v. Christie,
supra.Christie claimed the
delay violated the 4th Amendment and required the suppression of the
evidence found on the computer.U.S. v. Christie, supra.The court began its analysis of her argument
by noting that “an unreasonable delay in obtaining a search warrant can sometimes
violate the 4th Amendment.” U.S. v.
Christie, supra. It also noted that in “assessing the
reasonableness of a delay in seeking a warrant, . . . we must take account of `the
totality of the circumstances’ in each case as it comes to us, . . .wary
of the temptation to impose `rigid rules, bright-line tests, and mechanistic
inquiries.’ Florida v. Harris, 133 S.Ct. 1050 (2013). U.S. v. Christie, supra.It noted its task was to balance the `the
intrusion on the individual's 4th Amendment interests against the importance of
the governmental interests alleged to justify the intrusion.’ U.S. v.
Place, 462 U.S. 696, 703 (1983).” U.S.
v. Christie, supra

The court found, first, that “it's hard to
see a significant invasion of [Christie’s] 4th Amendment interests
flowing from the” delay. U.S. v. Christie, supraIt noted that while she was “its primary user
and stored a great deal of personal data on the computer”, Wulf consented
to its seizure and she “raised no objection to the seizure at the time or in
the following weeks and months.” U.S. v.
Christie, supra.The court found
that in “these circumstances, the government was entitled to assume . . . that
any 4th Amendment interest in the computer's continued possession had been
voluntarily relinquished. See, e.g., U.S. v. Matlock, 415
U.S. 164, 171 (1974).” U.S. v. Christie, supra.

The Court of Appeals then took up the other factor in the balancing test
noted above, noting that “the government makes out at least a colorable case
for holding onto the computer so long before undertaking a search.” U.S. v. Christie, supra. The agent who
seized it and “later searched it says that in between he was called upon to
help with out-of-town undercover operations in other cases.” U.S. v. Christie, supra. “No one . . .
disputes the existence of these operations” or “questions that they amounted to
a higher law enforcement priority than the computer search in this case.” U.S. v. Christie, supra.It also
noted that Christie, who bore the “burden of proof on her motion", produced evidence “suggesting her case or the others could have been
transferred to another available agent.” U.S. v.
Christie, supra. The court therefore “hesitate[d] to say the government
lacked any colorable grounds for its delay.” U.S. v. Christie, supra.

The Court of Appeals then balanced these interests and found
that “the government's side of the ledger reveals a colorable interest in
prioritizing law enforcement efforts while Christie can point to little harm to
her interests in light of her husband's . . . consent and her lack of
objection.” U.S. v. Christie, supra.
It therefore found that the delay in this case “falls inside the bounds of
constitutionally reasonable conduct, if not by a very great margin.” U.S. v. Christie, supra.

The Court of Appeals then took up Christie’s challenge to
the second warrant, which was that it did not “particularly” describe the place
to be searched and things to be seized, as is required by the 4th
Amendment.U.S. v. Christie, supra.(For more on the particularity requirement,
check out this site.)The warrant authorized a search of Christie’s computer for the
following:

[a]ll records and information relating
to the murder, neglect, and abuse of [BW] from June 19, 2002 (date of birth) to
May 4, 2006, (date computer seized), including:

1. All photographs of [BW].

2. All correspondence and/or documents relating to
[BW].

3. All records and information, including any
diaries or calendars, showing the day-to-day activities of Rebecca Christie
and/or [BW].

4. All addresses and/or contact
information of friends, families, or acquaintances who may have had regular
contact with Rebecca Christie and/or [BW].

U.S. v. Christie,
supra.

Christie claimed paragraph 3 “effectively permitted law
enforcement to search any and all records and information on her computer for
any and all purposes”, which violated the 4th Amendment’s
particularity requirement. U.S. v.
Christie, supra.The government
argued that its search efforts,

including those authorized in paragraph
3, were restricted by the warrant's opening language. . . . [T]he the
government says paragraph 3 didn't authorize it to rifle through Christie's
files looking for any sort of incriminating evidence. Instead,
it had to direct all of its search efforts, including those specified in paragraph
3, to information related `to the murder, neglect, and abuse’ of BW. And that
limiting direction, the government submits, is particularity enough under our
case law.

U.S. v. Christie,
supra.

The Court of Appeals found
it “hard to fault the government's reasoning.” U.S. v. Christie, supra.While it found that the warrant was “surely open to interpretation,” it
was similar to warrants it had upheld in other cases in which the warrant’s “opening
language limited the scope of all later enumerated searches to seeking evidence
of particular federal crimes.” U.S. v.
Christie, supra.It then explained
that “[a]t the very least,” given the prior cases, “we cannot deny that an
objectively reasonable officer acting in good faith could have read the warrant
before us in this same manner -- as restricting the scope of any search to
information “related to the murder, neglect, and abuse of” BW”. U.S. v.
Christie, supra.

Christie, though, had responded to this reasoning with the
argument that

if our current case law endorses the
warrant in this case then our case law needs to be reexamined. In an age where
computers permit access to most every `paper and effect] a person owns, she
fears that merely restricting the government to a search topic or objective
does little to prevent it from examining along the way virtually every bit and
byte of our lives. Risking with it the possibility the government will claim to
find `in plain view’ evidence of crimes totally unrelated to the reasons
spurring their search in the first place.

The text of the 4th Amendment says the
government must identify with particularity `the place to be searched’ and
requiring it to describe that place tersely as `a computer’ is to allow the
government to traipse willy-nilly through an entire virtual world. To prevent
that, Christie suggests a warrant must go further: it must specify limitations
not just what the government may search for but how the
government should go about its search.

U.S. v. Christie,
supra (emphasis in the original).

The government responded with the argument that

it's often difficult to know what
search protocols might be reasonably required at the time of a warrant
application, before the computer has been examined. Computer files can be
misnamed by accident, disguised by intention, or hidden altogether, leaving
investigators at a loss to know ex ante what sort of search
will prove sufficient to ferret out the evidence they legitimately seek.

U.S. v. Christie,
supra.

The Court of Appeals explained that, in its prior cases, it
had not required search protocols, and further explained that even if courts do
not require

particular search protocols up front in
the warrant application process, they retain the flexibility to assess the
reasonableness of the search protocols the government actually employed in its
search after the fact, when the case comes to court, and in light of the
totality of the circumstances. Unlike an ex ante warrant
application process in which the government usually appears alone before
generalist judges who are not steeped in the art of computer forensics,
this ex post review comes with the benefit, too, of the
adversarial process where evidence and experts from both sides can be
entertained and examined.

U.S. v. Christie,
supra.

It also noted that Christie, who bore the burden of showing
this search violated the 4th Amendment, “offered little evidence or
argument suggesting how protocols the government followed in this case were
unreasonable or insufficiently particular, especially when compared with
possible alternatives.”U.S. v. Christie, supra. And it found that "[w]itout more help along these lines, we simply cannot assess rationally her challenge to the government's search procedures in this case and must leave the development of the law in this arena to future cases." U.S. v. Christie,
supra.

For these and other reasons, the Court of Appeals affirmed
Christie’s convictions and sentence.U.S. v. Christie, supra.